by Akhona Zembe | Sep 21, 2021 | Law & Criminology
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za.
Where employees disrupt the workplace the operations of the business can be seriously affected. Employees who behave in a disruptive manner might do so for a variety of reasons including:
- Abuse of alcohol or other substances
- Incompetence – that is, while the employee is not intentionally disruptive, his/her inability to perform properly disrupts the flow of work in the workplace
- Resentment – Employees may resent receiving a low or zero pay increase,
- Unwillingness to work – there are many employees who tend to behave disruptively either because they do not care if they get fired or because they
are trying to get fired. Then they can tell their families that it was not their fault and go and make money at the CCMA by alleging ‘unfair dismissal’
- Industrial action – employees trying to pressurise the employer may, instead of going on a fully fledged strike, embark on disruptive behaviour.
- Dislike of a colleague or a boss.
Disruptive behaviour at the workplace can be seriously damaging to the effectiveness of business operations and can even result in losses for the employer. For example, disruptive behaviour can cause:
- Bosses to lose their tempers
- The speed of production to slow down
- Legal disputes arising from unprocedural discipline and dismissal
- Service to clients to suffer
- Loss of orders or of clients
- Injury to employees or other people
- The quality of products to deteriorate
- Damage to property
- Clashes between employees and managers or amongst employees
It is therefore most important that the employer acts swiftly and firmly yet within the law in order to minimise the damage and send a strong message that such behaviour will not be tolerated. Especially where an employee’s disruptive behaviour is habitual the employer needs to follow the correct disciplinary procedure to prove that the employee is guilty. Otherwise there is a danger of the disruptive employee being reinstated by the CCMA, Labour Court or bargaining council.
In the case of Mofokeng vs Afrikaans Import and Export cc (2001, 11 BALR 1184) the employee was dismissed for disrupting the workplace after he had
been caught under the influence of alcohol and had refused to obey the instructions of a superior. However, the employer reinstated the employee as it wanted to give him one more chance and commuted the dismissal to a final warning. Later the employee was again dismissed, this time for driving a forklift under the influence of alcohol, damaging the employer’s property with the forklift, smashing the windows of the company quarters in which he lived and loudly threatening management while the owner was on an international telephone call. Instead of calling a disciplinary hearing the employer fired the employee on the spot. The CCMA stated that the existence of the final warning did not exempt the employer from holding a disciplinary hearing.
Employees are advised, if they are aggrieved by anything at work, not to disrupt the workplace lest they end up out on the street. Instead, aggrieved employees should lodge formal grievances and/or CCMA disputes.
Employers are advised, when faced with ‘disruptive employees to:
- Avoid losing their tempers
- Use their most expert labour law specialist to help:
- carefully and thoroughly investigate the cause of the problematic behaviour
- arrive objectively and unemotionally at the route cause of the problem
- decide upon a legally compliant, practical and effective course of action appropriate to the particular type of disruption and to its specific cause. Such action may vary from a warning to a disciplinary hearing or from counselling to training or treatment.
To book for our 5 November webinar on BALANCING WORKPLACE EFFECTIVENESS WITH LEGAL COMPLIANCE please contact Ronni on ronni@labourlawadvice.co.za or 0845217492.
by Akhona Zembe | Sep 13, 2021 | Law & Criminology
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za.
The Labour Relations Act (LRA) provides that dismissal must be the last resort where the employer needs to remedy an employment related issue. This principle applies whether the problem relates to poor work performance, misconduct, job redundancy or incapacity due to illness or injury.
Historically, judges and arbitrators usually gave careful consideration to the prevailing circumstances in deciding whether the potential alternatives to dismissal could realistically have been implemented as a viable solution to the problem at hand. Where this has been done it has been in the interests of balancing fairness towards employees and employers.
However, a number of unfair dismissal decisions under the new dispensation can be seen as suggesting a trend towards an imbalance favouring employees. The highly publicised Sidumo vs Rustenburg Platinum Mines epic has been described as a case in point. While space does not allow for discussion of numerous other case decisions bemoaned by employers, we will discuss one case decision reported in 2010.
In Nape vs INTCS Corporate Solutions (Pty) Ltd (2010 CLL Vol. 19 No. 11)INTCS provided employees to Nissan (Pty) Ltd on the basis of a labour broker or TES (temporary employment service) contract. Nape, one of INTCS’s employees assigned to Nissan was found guilty of distributing, via Nissan’s email system, an offensive email to another person working at Nissan. At his disciplinary hearing he was issued with a final warning. This appears to have been based on INTCS’s disciplinary guidelines or policy relating to offensive communications. However, Nissan viewed this conduct as far more serious and refused to accept Nape back on to its premises.
Being unable to place Nape at Nissan or anywhere else, Nape was retrenched on the basis that there was no job for him and that a clause in his employment contract required INTCS to withdraw Nape from the client’s premises should the client require this. The Labour Court found that:
- Such a contractual clause was against public policy and therefore invalid and unlawful
- INTCS could have and should have resisted Nissan’s refusal to take Nape back by interdicting Nissan in court to prevent Nissan from refusing to take Nape back
- It was unfair for INTCS to have retrenched Nape before having attempted to resist Nissan’s decision to refuse Nape’s return to work.
This decision is a major shock for employers because:
- The finding that the clause giving Nissan the right to bar Nape was contrary to public policy fails to take into account that any person(including a business) has the right to bar any other person from its premises particularly where the person barred has committed an offence
- Had INTCS ignored Nissan’s decision for Nape to be barred and had it ignored the relevant contractual clause Nissan could still simply have refused Nape entry to its premises and halted its payments to INTCS for Nape’s assignment
- Had INTCS then have continued to press for Nape’s return to work at Nissan by, for example, sending threatening letters to Nissan or suing this client in Court, INTCS would have incurred the serious and real risk of losing the entire Nissan contract which was one of its biggest contracts. This would have resulted in the loss of a great many jobs and serious financial losses to INTCS.
Furthermore, It would have been most unlikely that INTCS would have succeeded via an interdict application to force Nissan to take Nape back. This is especially because:
- Nissan is a large and powerful company with the resources to fight such cases robustly
- The clause in the agreement between Nissan and INTCS gave Nissan the contractual right to bar any INTCS employee
- Nape was found guilty of a serious offence committed on Nissan property
- In addition, such interdicts are normally only granted on the basis where urgency can be proved and it is highly unlikely that the High Court would accept a claim of urgency in a situation where INTCS was unable to show serious losses due to the barring of Nape and where a contract agreeing to such banishment was in place.
Thus, while INTCS could in theory have applied for such an interdict, this route was unviable in the extreme.
To access the opinions of our labour law experts please go to www.labourlawadvice.co.za and click on the Labour Law Debate icon in the main menu.
by K-Ci Henry | Jun 7, 2021 | Law & Criminology , Legal
Section 197 of the Labour Relations Act (LRA) requires the new employer, in a takeover as a going concern, to take over all the employees of the old employer.
A take over of an enterprise “as a going concern” essentially means that the new employer is carrying on the same business as the old employer after a takeover.
In such a case the new employer is required to take over the old employer’s staffwith all their years of service and all their old terms and conditions intact. Due to
t his heavy burden and for other reasons, the new employer often wishes to retrench excess employees or requires the old employer to carry out the
retrenchments before the takeover. However, section 187(1)(g) of the LRA prohibits any retrenchment (or any otherdismissal) related to a takeover as a going concern. Such terminations are deemed to be automatically unfair dismissals. This means that the dismissed employees could claim reinstatement or up to 24 months remuneration in compensation. It is important to stress that the provisions of sections 197 and
187 of the LRA apply not only to businesses but to all employers including government departments, welfare organisations, NGOs and all other enterprises
that employ staff.
The purpose of this legislation is to preserve jobs by preventing employers from rationalising their workforces in circumstances of a takeover. However, because
such legislation tends to discourage takeovers, rescue bids for enterprises that are going under will also be discouraged. Such enterprises will often have to
close down. Then, instead of a limited number of employees being retrenched during a rationalisation, all the employees will lose their jobs.
In the case of Cash Paymaster Services (Pty) Ltd vs Browne (2006, 2 BLLR 131) the Labour Appeal Court found that the employee who lost his job due to the
takeover of a business had been unfairly dismissed. The employer was ordered to pay most of the employee’s legal costs plus compensation in the amount of
R684 621.
In the case of Van Zyl vs Asanti Safari Trading cc t/a The Hill Kwik Spar and another (2009, 2 BALR 206) the parties consented that the case be heard by the
CCMA instead of by the Labour Court. In this case the employee was dismissed shortly before the business was taken over by a new owner. The respondent
claimed that the sale agreement between the old and new owners had excluded the requirements section 197 of the LRA. However, the arbitrator found that:
The sale agreement had not excluded section 197 and that, had it done so, this would have been illegal.
The old and new employers could have entered into an agreement to vary the requirements of section 197 but only if they had entered into such agreement with the full participation of the employees of the business whose jobs could be affected by the results of the takeover.
Van Zyl, the dismissed employee, had not been involved in any such agreement with the owners.
The purchase of the business had constituted a transfer of a going concern as contemplated in section 197 of the LRA
The reason that the employee was dismissed was the takeover of the business.
This contravened the provisions of section 187(1)(g) of the LRA effectively prohibiting such dismissal.
The dismissal was automatically unfair.
The new employer was required to pay the employee compensation equal to 12 months’ compensation and also to pay the employee’s legal costs.
These cases show that employers considering takeovers, buy outs, mergers or contracting/outsourcing arrangements must, before implementing any transfers,
must act with extreme caution. That is, they should utilise their labour law experts to:
Analyse and explain the meaning of sections 197 and 187 of the LRA as well
as of the developing case law in this area.
Examine the specific circumstances of the intended takeover in the light of the legislation.
Work out a strategy for completing the takeover without infringing the ever tightening labour legislation.
To register for our 7 May webinar on Lockdown Labour Law please contact
Ronni on ronni@labourlawadvice.co.za or 0845217492.
